Nitin Sitaram Wankhede vs The State Of Maharashtra
2021 Latest Caselaw 14924 Bom

SHAMBHAVI
NILESH                                                              7-REVN-184-2021.odt
SHIVGAN
Digitally signed by
SHAMBHAVI
NILESH SHIVGAN          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2021.10.13             CRIMINAL APPELLATE JURISDICTION
18:28:39 +0530

                                REVISION APPLICATION NO.184 OF 2021

                      Nitin Sitaram Wankhede                    ... Applicant
                            Vs
                      The State of Maharashtra              ... Respondents
                                                  ...

                      Mr. Sayaji D. Nangre for the Applicant.

                      Mr. Y.M.Nakhawa, APP for the Respondent-State.


                                   CORAM : SANDEEP K. SHINDE J.
                                   DATE :  OCTOBER 12, 2021.



                      JUDGMENT :

Rule.

2 Rule made returnable forthwith. With consent of

the learned counsel for the parties, revision is taken up for

final hearing.

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3             This revision challenges the correctness, legality

and propriety of the orders; one dated 17th September,

2021 issuing non-bailable warrant; second dated 27 th

September, 2021 by which the learned Judge declined to

recall the order issuing non-bailable warrants and third;

dated 8th October, 2021 rejecting applicant's request to

cancel the warrant by imposing the cost of Rs.1,000/-.

4 Admittedly, whilst applicant-accused was present

before the Court on 17 th September, 2021 in the morning

session, co-accused was not present and thus, case was

called out in the second session. At that time, applicant was

not present. Thus, non-bailable warrant was issued.

Applicant's applications to recall the order issuing non-

bailable warrants were rejected by the learned Sessions

Judge. One of the orders declining to cancel non-bailable

warrant reads as under:

" Before the Court accused not produced from jail. Their advocate present. Rest accused

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absent. His advocate present. Application filed by Advocate Shri Ankushe for cancellation of warrant of accused no.4 (No plausible reasons given. Rejected)"

It appears, next hearing date was 8 th October, 2021.

Roznama of this date shows, advocate of the

applicant (Accused No.4) filed application for

cancellation of warrant. It was rejected with cost of

Rs.1,000/-. Feeling aggrieved by the orders stated

above, this Revision Application is preferred.

5 Mr. Nangre, the learned counsel for the

applicant submitted that the learned Court was not

justified in issuing non-bailable warrants and further

committed an error by refusing to recall the orders

issuing non-bailable warrants, in-as-much as on the

scheduled date for hearing, applicant was present in

the Court in the morning session and circumstances

much less records and proceedings were not

indicating that the applicant will not voluntarily

appear.

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6           In consideration of the facts of the case, in

my view,      the orders impugned, were unwarranted,

having    passed     by   overlooking    the   authoritative

pronouncements of the Hon'ble Apex Court on the

subject in hand in the case of Inder Mohan

Goswami v. State of Uttaranchal 2008 AIR (SC)

251. Paragraphs 52 and 53 of which read as under:

"52 Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when:

*it is reasonable to believe that the person will not voluntarily appear in court; or *the police authorities are unable to find the person to serve him with a summon; or *it is considered that the person could harm someone if not placed into custody immediately.

53 As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-

bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very

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carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive."

7 Thus, in view of the settled law, three

impugned orders dated 17th September, 2021, 27th

September, 2021 and 8th October, 2021 passed in

Sessions Case No.212 of 2018 pending on the file of

the learned Additional Sessions Judge, Kalyan are

quashed and set aside.

8 Needless to state that applicant shall mark

his presence in the subject case unless his presence is

exempted by the learned Court.

9 Application is allowed in the aforesaid terms

and disposed off.

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10        Rule is discharged.



             (SANDEEP K. SHINDE, J.)




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